Bill S7324-2011

Authorizes streamlined adjudicatory proceedings for small businesses appearing as respondents before certain state agencies

Authorizes streamlined adjudicatory proceedings for small businesses appearing as respondents before certain state agencies; authorizes a pilot program by the departments of environmental conservation, health and labor and requires a report after 1 year.

Memo

BILL NUMBER:S7324

TITLE OF BILL: An act to amend the state administrative procedure act and the economic development law, in relation to streamlined adjudicatory proceedings for small businesses

PURPOSE OR GENERAL IDEA OF BILL: This bill would cut the cost and complexity of small business participation in adjudicatory proceedings by allowing agencies to offer streamlined optional proceedings (e.g., mail, e-mail, telephone conferencing, Skype) to small businesses.

SUMMARY OF SPECIFIC PROVISIONS: Section 1 adds a new § 308 to the State Administrative Procedure Act (SAPA) to allow agencies to adopt regulations providing for streamlined proceedings involving small businesses for specific programs and categories of violations/other issues that can be fairly resolved without a physical hearing. In adopting such regulations, an agency shall consider the types of programs and issues for which such streamlined proceedings may reasonably be conducted, and shall:

> ensure that a streamlined proceeding is at the option of the respondent small business with the consent of the agency and other necessary parties, and no rights will be diminished through exercise of this option;

> establish available formats and procedures for requesting, scheduling, conducting and recording such proceedings; and

> provide that, if it becomes impractical or inappropriate to continue a stream-lined proceeding, the matter may be rescheduled as an ordinary adjudicatory proceeding without prejudice to any party.

Section 2 amends Economic Development Law § 133(6) to empower the Small Business Advisory Board to report on agency use of streamlined optional adjudicatory proceedings for small businesses.

Section 3 requires three agencies that regulate small businesses (either the Departments of Environmental Conservation, Health and Labor, or others to be substituted by the Governor) to undertake pilot projects to conduct streamlined proceedings.

Section 4 provides that the act shall be not construed to limit any existing authority of any agency to provide for the conduct of adjudicatory proceedings by mail, telephone or electronic means.

JUSTIFICATION: The success of small businesses is key to our economy. New York State must continue its efforts to improve the business climate and allow the use of technology to reduce the costs of government and improve efficiency. This requires rethinking statutory requirements to ensure that 20th - or sometimes 19th - century laws are not creating

The costs and burdens of attending an in-person hearing for minor violations can have a disproportionate impact on a small business. New technologies and innovative procedures can allow New York State to conduct such operations in a way that minimizes these burdens.

In 2010, the New York City Regulatory Reform Review Panel recommended that City agencies "facilitate ways for small business owners to avoid having to appear in person before administrative tribunals, such as by settling or contesting violations by mail or telephone or over the internet." In response, the City recently launched a program allowing "One-Click Hearings" which allows people to contest various violations handled by the Environmental Control Board (e.g., trash violations, mobile food carts) as well as parking tickets. In an effort to provide relief to taxpayers, this bill will increase agency efficiency and limit the burdens on small businesses throughout New York State.

PRIOR LEGISLATIVE HISTORY: New Bill.

FISCAL IMPLICATIONS: It is anticipated long term savings will be achieved by utilizing more efficient operations.

EFFECTIVE DATE: This act shall take effect immediately.

Text

STATE OF NEW YORK
________________________________________________________________________
7324
IN SENATE
May 2, 2012
___________

Introduced by Sen. FLANAGAN -- read twice and ordered printed, and when
printed to be committed to the Committee on Commerce, Economic Devel-
opment and Small Business
AN ACT to amend the state administrative procedure act and the economic
development law, in relation to streamlined adjudicatory proceedings
for small businesses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The state administrative procedure act is amended by adding
a new section 308 to read as follows:
S 308. STREAMLINED OPTIONAL ADJUDICATORY PROCEEDINGS FOR SMALL BUSI-
NESSES. UNLESS OTHERWISE PROHIBITED BY LAW, AN AGENCY MAY ADOPT REGU-
LATIONS PROVIDING FOR USE AT THE OPTION OF A SMALL BUSINESS OF STREAM-
LINED ADJUDICATORY PROCEEDINGS CONDUCTED BY MAIL, ELECTRONIC MAIL,
TELEPHONE CONFERENCE OR VIDEOCONFERENCE. IN ADOPTING SUCH REGULATIONS,
THE AGENCY SHALL:
1. CONSIDER THE TYPES OF PROGRAMS AND ISSUES FOR WHICH SUCH STREAM-
LINED PROCEEDINGS MAY REASONABLY BE CONDUCTED, TAKING INTO ACCOUNT (A)
THE COMPLEXITY OF THE MATTERS TO BE RESOLVED IN THE PROCEEDING, (B) THE
SEVERITY OF POTENTIAL SANCTIONS, (C) ANY NECESSITY FOR PERSONAL APPEAR-
ANCES, INCLUDING BUT NOT LIMITED TO REQUIREMENTS FOR SWORN TESTIMONY OR
CROSS-EXAMINATION, AND (D) ANY POTENTIAL REDUCTION IN THE COSTS AND
BURDENS OF PARTICIPATING IN THE PROCEEDING FOR THE AGENCY AND FOR OTHER
PARTIES, AND SHALL APPROPRIATELY LIMIT THE AVAILABILITY OF STREAMLINED
PROCEEDINGS TO PROGRAMS AND ISSUES IN WHICH THE PUBLIC INTEREST IN FAIR
OUTCOMES CAN CONTINUE TO BE ASSURED;
2. ENSURE THAT A STREAMLINED PROCEEDING MAY ONLY BE USED AT THE OPTION
OF THE RESPONDENT SMALL BUSINESS WITH THE CONSENT OF THE AGENCY AND ANY
OTHER NECESSARY PARTY TO THE PROCEEDING, AND THAT THE RIGHTS OF RESPOND-
ENTS AND OTHER PARTIES WILL NOT BE DIMINISHED IN ANY RESPECT BY VIRTUE
OF PARTICIPATION IN A STREAMLINED PROCEEDING;
3. SPECIFY THE FORMAT OR FORMATS FOR REMOTE CONDUCT OF STREAMLINED
PROCEEDINGS;

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14128-01-2

S. 7324 2

4. ESTABLISH PROCEDURES FOR REQUESTING AND SCHEDULING SUCH
PROCEEDINGS, FOR THE CONDUCT OF SUCH PROCEEDINGS, AND FOR THE DEVELOP-
MENT OF A COMPLETE RECORD AS PROVIDED IN SECTION THREE HUNDRED TWO OF
THIS ARTICLE; AND
5. PROVIDE THAT, IN THE EVENT THAT IT BECOMES IMPRACTICAL OR INAPPRO-
PRIATE TO CONTINUE A PROCEEDING COMMENCED PURSUANT TO THIS SECTION AS A
STREAMLINED PROCEEDING, SUCH PROCEEDING MAY BE RESCHEDULED AS AN ADJUDI-
CATORY PROCEEDING PURSUANT TO SECTION THREE HUNDRED ONE OF THIS ARTICLE
WITHOUT PREJUDICE TO ANY PARTY.
S 2. Paragraphs (g) and (h) of subdivision 6 of section 133 of the
economic development law, paragraph (g) as amended and paragraph (h) as
added by section 5 of part BB of chapter 59 of the laws of 2006, are
amended and a new paragraph (i) is added to read as follows:
(g) establish procedures for making annual awards to be known as "New
York State Small Business Awards". These non-monetary awards shall be
given in recognition of unusual performance by persons, firms and organ-
izations which are engaged in the operation of New York state small
businesses or which are engaged in activities to assist small businesses
in the state. The board may nominate up to five award winners annually
and forward such names to the governor for his consideration. The gover-
nor may designate award winners from these nominees at his discretion.
Current members of the advisory board are not eligible as nominees;
[and]
(h) advise the commissioner on recommendations for the selection of a
minority and women-owned business enterprise statewide advocate as set
forth by section three hundred eleven-a of the executive law[.]; AND
(I) REPORT TO THE COMMISSIONER, THE GOVERNOR AND THE LEGISLATURE ON
AGENCY USE OF STREAMLINED OPTIONAL ADJUDICATORY PROCEEDINGS FOR SMALL
BUSINESSES.
S 3. Within one hundred eighty days of the effective date of this act,
the departments of environmental conservation, health and labor shall
institute pilot projects to offer optional streamlined adjudicatory
proceedings for small businesses for at least one regulatory program of
the agency under which small businesses currently appear as respondents
in adjudicatory proceedings; provided, however, that the governor may
direct that another agency shall institute a pilot project instead of a
listed agency. Such pilot projects shall be designed by the agency in
conjunction with the division for small business and in consideration of
input solicited from small businesses and other stakeholders. Notwith-
standing the provisions of section one of this act, the agency shall not
be required to adopt regulations governing such proceedings, but shall
ensure that such proceedings are governed by guidelines consistent with
the provisions of such section one and voluntarily accepted by all
participants. One year after initiating a pilot project, the agency
shall prepare a comparative review of the cost, timeliness and outcome
of streamlined proceedings and ordinary adjudicatory proceedings and
shall provide such review to the small business advisory board, along
with any other information which the board shall request.
S 4. Nothing in this act shall be construed to limit any existing
authority of any agency to provide for the conduct of adjudicatory
proceedings by mail, telephone or electronic means.
S 5. This act shall take effect immediately.

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